Digital estate planning often forgotten

Originally published January 7, 2012 at 8:00 pm

Updated January 7, 2012 at 10:31 pm

In many cases, survivors may not even be aware of the existence of accounts or assets, prompting a load of questions: Can we find this stuff? Which computer is it on? Is it stored in the cloud? What about the smartphone? Can we circumvent the password or decrypt the data?

Death in the digital age is a lot more complicated than it used to be.

“Traditionally, when somebody was incapacitated or they passed away, family members would call me and I’d go to the house,” says James Lamm, a Minneapolis estate-planning attorney. “We’d look through the paper records. We’d watch the mail for other bills and account statements. That is how we gathered the financial information to administer the estate.”

It’s not so easy today, says Lamm. “Now people can get their electronic email bills and account statements,” he says. “They may pay their bills online. They may file their tax returns electronically. They may keep important records electronically.”

Unfortunately, says Lamm, in too many cases people haven’t left the information — passwords and location — the family needs to access those records. “This is just starting to really hit families,” he says.

In many cases, survivors may not even be aware of the existence of accounts or assets, prompting a load of questions: Can we find this stuff? Which computer is it on? Is it stored in the cloud? What about the smartphone? Can we circumvent the password or decrypt the data?

Lamm says very few of his clients have thought of the digital side of things when they walk into his office. Even more surprising, he says, is that “very few estate-planning attorneys have even thought of this.”

The issue is a bigger deal in the Puget Sound region than in many other areas, says Wendy Goffe, an estate-planning attorney with the Seattle-based Graham & Dunn. “We have so many people living a digital life [in this area] that you don’t see in Iowa,” says Goffe. “I have clients who manage their businesses entirely on the Web.”

One of Goffe’s clients, for example, is a photographer. “All of her life’s work is digital,” Goffe says. “She has licensed some of the photographs. She has published some of the photographs. She has done instructional videos. But it is all in the cloud.

“If she were to die, you’d walk into her house and think it looked like she was unemployed. Because she’s got a computer, there aren’t any negatives lying around.”

Goffe helped the photographer arrange to have someone with the right access and passwords to step in and take over and continue to license her images and publish her work. “But if you don’t have that backup in place, a whole lifetime could be lost,” Goffe warns.

The key to a smooth administration of your estate, both Goffe and Lamm say, is advance planning.

And the most obvious price of not planning ahead can be lost assets. And it’s not just bank accounts, manuscripts and photographs that may be lost.

“A lot of us in the estate-planning world don’t even know what to look for,” says Lamm. For example, how many of us would think to check on the domain names leased by a deceased family member? Lamm notes that some domain names can be sold for $50,000 or more, and there are people waiting to jump on them when the lease expires.

Lamm also points to accounts in online games as potential hidden assets. “Within the last year, someone sold some virtual real estate in a video game for $635,000,” Lamm says. “That’s big money.”

But there are other potential pitfalls, too. What, for example, happens to your social-network accounts when you die? “Some people want them perpetuated while some people them destroyed,” Goffe says. “I make clients write out instructions and include them with the list of passwords that are going to go to their personal representative.”

Finally, you should consider potential liabilities lurking in your digital estate. For example, what if you have trade secrets or other sensitive information on your computer and, after your death, your family donates the computer for recycling without wiping the hard drive clean? If that trade secret falls into the wrong hands, your estate might be liable.

Digital-savvy estate planners advise clients to take three basic steps. First, do a complete inventory of all digital accounts and assets so that your estate administrator will know just what you have of potential value (or liability) and where it is. Second, assemble a list of all passwords. Third, select a fiduciary and give them the proper power of attorney to administer your estate.

Of course, you’ll want to make sure your administrator knows where to find the digital inventory and password list. Goffe suggests a safe-deposit box as that repository. “I don’t want to be responsible for storing people’s passwords and access codes,” she says. “If their account gets hacked I have no way of proving it wasn’t somebody on my staff who had access to that information.”

And Lamm advises people to be careful in selecting a fiduciary. “You need somebody who is maybe a little bit tech savvy, who can speak the language,” he says. “This stuff is challenging. It’s a brave new world.”

Goffe also urges clients to make sure their estate administrator has sufficient power of attorney. Because laws are often unclear about who has the right to access what in the digital world, estate executors may run into legal tangles.

“We’ve really radically beefed up our powers of attorney,” Goffe says. “Companies are skittish, so we have spent a lot of time beefing up the agreements so that people can access electronic information more easily.”

Not surprisingly, application developers have also stepped in to provide tools to help you in preparing your digital estate.

Three of the highest-profile offerings are Entrustet, Legacy Locker and DataInherit. Each service offers a free account that will store a limited number of passwords and inventory lists.

Generally, if you want to store more than a few passwords and assets you’ll need to pay a fee ranging from $30 to $200 a year, depending upon the services and features wanted. The services promise “bank-level” security for your stored data.